McDonald v. Chicago Roundup

Yesterday the SCOTUS ruled on McDonald v. Chicago. Chicago has a complete and total ban on handguns, and McDonald felt that violated his 2nd Amendment rights. This was essentially the same argument as the one in Heller v. DC. The difference is that DC is run by the federal government, and so the Constitution applies automatically. Chicago is a run by the state of Illinois, and so the 2nd Amendment only applies if it is “incorporated” by the 14th Amendment.

The idea of incorporation is that the “due process” clause of the 14th Amendment causes the Bill of Rights to apply to the states:

The incorporation of the Bill of Rights (or incorporation for short) is the process by which American courts have applied portions of the U.S. Bill of Rights to the states. Prior to the 1890s, the Bill of Rights was held only to apply to the federal government. Under the incorporation doctrine, certain provisions of the Bill of Rights now also apply to the state and local governments, by virtue of the due process clause of the Fourteenth Amendment of the Constitution.

In McDonald v. Chicago the SCOTUS ruled that incorporation does apply to the 2nd Amendment. In Heller they had already ruled that the 2nd Amendment applies to individual Americans (not, as some liberals and anti-gun advocates had argued, to state governments), so now we have a blanket, nation-wide ruling that Americans have an individual right to “keep and bear arms” that the state governments cannot ignore.

Although the SCOTUS didn’t explicitly strike down Chicago’s handgun ban, they ordered a lower court to review it, and it’s almost certain that the lower court will overrule the ban. Now, where do we go from here? What does it really mean?

The following blog entries (from SCOTUSBlog and the Volokh Conspiracy) provide some answers:

McDonald: A Victory for Liberty

Ilya Shapiro of the CATO Institute is happy about the ruling:

Today is a big victory for gun rights and a bigger one for liberty. The Court correctly decided that state actions violating the right to keep and bear arms are no more valid than those taken by the federal government. But it could not have been otherwise: the Fourteenth Amendment, coming on the heels of the Civil War, says clearly that never again would the Constitution tolerate state oppressions and that all individuals possess certain fundamental rights. And it is equally clear that the right to keep and bear arms is one of those deeply rooted fundamental rights, not least because the Framers thought so highly of it as to enumerate it in the Second Amendment.

Still, Justice Alito’s plurality opinion leaves a lot to be desired, in that his ultimately correct conclusion rests on a dog’s breakfast of Substantive Due Process “incorporation” doctrine that arose only because the Privileges or Immunities Clause was strangled in its crib by an 1870s Supreme Court that refused to reconcile itself to the changes in constitutional structure wrought by the Fourteenth Amendment. Justice Thomas’s response to this tortured attempt to fit a square fundamental right into a round procedural guarantee is the right one: “I cannot accept a theory of constitutional interpretation that rests on such tenuous footing.”

Only Justice Thomas grapples with the original meaning of the Fourteenth Amendment, surveying the rich history of the terms “privileges” and “immunities” to find that the right to defend oneself is part and parcel of the inalienable rights we all possess – and indeed it is “essential to the preservation of liberty.”

In other words Alito – writing for the plurality – came to the right conclusion but based his decision on some pretty fragile logic. That would make the ruling more subject to being overturned (although that’s not tremendously likely). Thomas, on the other hand, came up with a much more common-sense interpretation that went straight from 2nd Amendment to 14th Amendment without a bunch of crazy extra logic in between. This is sounder logic, and harder to overturn.

Constitutional rights that put lives at risk

Ilya Somin of the Volokh Conspiracy criticizes some of the logic of the minority opinion on the ruling:

In his dissent in McDonald, signed by three liberal justices, Justice Breyer argues that gun rights deserve little or no judicial protection at least in part because they put lives at risk:

Unlike other forms of substantive liberty, the carrying of arms for that purpose [self-defense] often puts others’ lives at risk…. And the use of arms for private self-defense does not warrant federal constitutional protection from state regulation.

This argument ignores social science evidence suggesting that extreme gun bans like those of DC and Chicago cost at least as many innocent lives than they save. Still, gun rights probably do cause at least some deaths that might otherwise have been prevented.

In that respect, however, they are no different from numerous other constitutional rights. Justice Breyer’s argument in McDonald is actually very similar to Justice Antonin Scalia’s dissent in Boumediene v. Bush, where Scalia warned that giving habeas corpus rights to War on Terror detainees “will almost certainly cause more Americans to be killed.” That argument didn’t move Breyer, who voted with the majority to extend those rights. Similarly, the enforcement of Fourth Amendment rights and Fifth Amendment rights allows at least some violent criminals to escape punishment, which in turn leads to some number of murders that might otherwise have been prevented. Pro-lifers certainly argue that the right to abortion kills far more people and in a far more direct way than gun ownership does.

But the really big skeleton in this particular closet is freedom of speech. Political speech and organization by communists, Nazis, racists, radical Islamists, and others has led to vastly more preventable deaths than private ownership of handguns.

Ilya hits the nail right on the head. The idea that we can limit Constitutional liberties because innocent people might otherwise die is something that we need to apply consistently or not at all. It really shows the emotional bias of liberals that they will stand up for principle and defend the rights of people who hate American to say so – even when that will likely lead to violence and terrorist acts – but don’t want ordinary, law-abiding American citizens to be able to own guns to protect themselves.

McDonald Impact: A Slew of Legal Challenges

NYU law prof Steven Calabresi talks about the likely impact of the McDonald decision: a lot of new challenges.

McDonald v. City of Chicago is a huge five-to-four win for proponents of Second Amendment rights. Justice Alito’s opinion, together with Justice Thomas’ concurrence, makes it clear that the Second Amendment applies to states and municipalities as vigorously as it applies against the federal government.

Predicting the Impact of McDonald

Ilya Somin weighs in on the likely future impacts of the McDonald decision. He breaks it down into 3 categories.

Limited Practical Impact

As I explained in this 2008 Legal Times article on Heller, Justice Scalia’s majority opinion in that case leaves numerous openings even for very broad gun control regulations…

McDonald does nothing to clarify or pare back this language from Heller. Presumably, therefore, Heller’s strictures on the limits of gun rights remain intact and will apply to state as well as federal regulation.

The Impact of Ideological Division

Both Heller and McDonald were closely divided 5–4 decisions where the Court split along ideological lines. In Heller, the four liberal justices indicated that they do not believe that the Second Amendment protects an individual right robust enough to invalidate even the most extreme forms of gun control. As I see it, it’s even more telling that in McDonald they argued that the Second Amendment should not restrict the states in any significant way even if Heller were correct as to the federal government.

As I argued in this article on the status of property rights, it is difficult to achieve strong protection for constitutional rights if such protection is supported by judges on only one side of the political spectrum.

The last section was the most sobering:

Could Heller and McDonald Actually Lead to More Gun Control Regulation?

Assuming Heller and McDonald survive, it’s possible that they might actually increase the amount of gun control regulation in the long run. As Eugene Volokh points out:

[S]ubstantive constitutional limits on government power can be regulation-enabling, not just regulation-frustrating. A non-absolute constitutional right to get an abortion, to speak, or to own guns can free people to vote for small burdens on the right with less concern that these small steps will lead to broader constraints.

Some of those who oppose relatively moderate gun control regulations do so out of fear that they will lead to much broader ones. If Heller and McDonald take that possibility off the table, yet do not ban moderate gun control measures themselves, the net result could be an increase in political support for the latter.

Analysis: State regulation and McDonald

Matthew Scarola of the SCOTUSBlog describes the likely practical impacts of the McDonald decision on state and local gun regulations. The gist of it seems to be: confusion will reign.

While most state constitutions protect a right to keep and bear arms, state courts almost always deem state gun regulations “reasonable” and uphold them on that basis. In McDonald, the plurality stressed that its holding will not end “‘experimentation with reasonable firearms regulations.’” But it left undisturbed the Court’s strong suggestion in District of Columbia v. Heller (2008), the D.C. guns case, that a more demanding test is appropriate.

In McDonald, as in Heller, however, the Court declined to articulate the standard under which firearms regulations should be evaluated.

In other words: we’re going to have to have more court cases to figure out what’s really going on here. McDonald is just the first step in figuring out exactly what will and will not be allowed in terms of restrictions on gun ownership in the United States.



  1. Anonymous says:

    These hippie narcissists thought it was, the right to kelp, and bare arms.

    The Bill of Rights, a 1st grader could understand. I just don’t understand this charade of not being able to comprehend them. To quote John Stossel, give me a break.

  2. Anonymous says:

    They just don’t get it. How thick can you get?

  3. John Buyon says:

    just want to put my two cents in this.
    first I don’t support gun restrictions, but since you conservatives pretend that common sense is a virtue possessed only by the right wing.
    I do support “common sense” gun control.

    and spare me the whole gun control—> despotism
    the last 10 years proves that it isn’t true. you people kept your guns but lost your freedom through the various Anti-terrorism legislation.

  4. Anonymous says:

    4:26, Common sense gun control…. 2nd amendment.

  5. Read it and weep says:

    Play by the rule book (Bill of Rights), or go start your own da*ned country.

Speak Your Mind